Ab v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1376/2018

[2026] HKCFI 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1376 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 13 July 2018 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 22 February 2018 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision refusing his claim for non-refoulement protection.   

2.The Applicant had been legally represented.  His Form 86 was professionally drafted and filed by his solicitors.  However, the solicitors ceased to act for him.  At the hearing, the Applicant adopted the grounds of application as stated in the Form 86 and emphasized his reliance on particular pleads in the Form 86.  

The Applicant’s claim

3.The Applicant is a Bangladeshi national, aged 53.  His personal background, the factual background leading to the present application, the basis of his claim and the arguments he advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.   In gist, he claims he will be harmed or killed by his enemies because of his political involvement in the Bangladesh Nationalist Party (the “BNP”).

4.The Applicant had previously entered Hong Kong on 28 January 2004 under a false identity, overstayed and was removed back to Bangladesh on 5 July 2004.  He arrived in Hong Kong on 13 September 2007 again, departed for Mainland China and returned to Hong Kong on 22 September 2007.  He overstayed since 30 September 2007.  He was arrested in November 2007.  He lodged a torture claim on 24 December 2008.  In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].  His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

5.He claimed he was a member of the BNP in 1987 and was elected to the post of Assistant General Secretary in 1991.  Because of his active participation in the activities of the BNP, he was charged with arson, destruction of public property, assaulting police officers and encircling the superintendent’s office.  A warrant was issued for his arrest.  Hence, he fled to Hong Kong in 2004 under a false identity.  He was arrested and repatriated back to Bangladesh on 5 July 2004.

6.After his return to Bangladesh, he was appointed Organizing Secretary of the BNP for the Rajshahi Division in around 2005.  He became a good friend of Tarique Rahman (“Tarique”), the President of the Jubo Dal. Tarique was the son of Mrs Khaleda Zia who had formerly twice been the prime minister of Bangladesh.  His father, Ziaur Rahman had at one time been the President of Bangladesh.  The Applicant claimed that his grandfather, Dr RA Goni (“Goni”), also known as RA Gani, was a senior BNP leader and the most trusted Committee Member in President Ziaur Rahman’s government.

7.Towards the end of 2006, the BNP government stepped down.  A caretaker government was formed mainly to ensure the forthcoming general election would be carried out fairly.  In around July 2007, the Applicant became a central BNP member.  He was entrusted by Tarique to deliver some confidential BNP files from Bogra to a safe place in Kalir Bazar.  Those files were wanted by the caretaker government for the purpose of obtaining information to enable it to recover stashed fund/black money from outside Bangladesh as well as prosecuting those responsible for making the fund movements.  The Applicant made two successful deliveries.  However, he and his team were arrested after the second delivery.  They were held in custody in Gaibandha police station, interrogated and tortured.  On the early hours of the fourth day of their detention, the Applicant and two of his BNP colleagues were put on board a vehicle with nine armed officers.  They were driven to a field and were told to run away.  Knowing that the officers wanted to stage a case that they were killed trying to escape from lawful custody, they refused.  Then an officer shot and killed one of the Applicant’s colleagues.  Upon seeing that, his other colleague suddenly attacked one of the officers near him.  Then, the Applicant and that colleague escaped in the confusion.  They jumped into the river and swam to the opposite side.  The officers fired at them.  His colleague was shot on the shoulder and he was shot in the stomach.  They received treatment in either a private hospital or a private clinic.  Then, the Applicant fled to Hong Kong.

Finding of the Board

8.The Board conducted a directions hearing on 2 February 2017 and drew the Applicant’s legal representative’s attention to further independent and reliable country of origin information (“COI”) showing that Tarique was held in custody between March and September 2007, which discredited the Applicant’s story that he was instructed by Tarique in July 2007 to deliver the confidential files.  The Board also pointed out the absence of COI to confirm any of his assertions as to his prominence in the BNP and his close connection with those in charge of the BNP, including Tarique.  At the request of the Applicant’s legal representative, the Board directed that the Applicant be examined by a forensic pathologist and psychiatrist.  

9.The Applicant testified before the Board.  He adduced new evidence, including his mental status report and various medical reports.  The Board found he was a wholly unreliable witness.  The Applicant asserted he had considerable involvement with leading members of the BNP; that his grandfather was the most trusted committee member of the government under the former President of Bangladesh and father of Tarique; and that his relationship with Tarique was so close that he was entrusted to conceal BNP’s confidential documents in July 2007, which were badly wanted by the caretaker government. But there was no evidence adduced to corroborate these assertions.  The Board found irrefutable COI which indicated that the Applicant could not have had personal dealings with Tarique in July 2007 as Tarique had been in custody from March to September that year.  Initially, the Applicant alleged that the COI was false information put out by the caretaker government and advanced an explanation that it was Tarique’s friend who was arrested.  Later he accepted the COI was correct and that he was confused.  But, no attempt was made to fill in the gap in his story about his dealing with Tarique in concealing the confidential files created by his change in evidence about Tarique’s arrest and detention. 

10.The Board accepted that the Applicant suffered injuries, but had no doubt that he had not come about such injuries in the circumstances described by him in the non‑refoulement claim form and screening interviews. It did not believe his assertions about his alleged relationship with the BNP and its leaders.  It placed no weight on any of his evidence.  Having made those findings, the Board came to the conclusion that the Applicant had failed to prove his entitlement to protection under any of the applicable grounds under the USM.

Grounds for judicial review

11.The Applicant advanced three grounds of review.  These grounds overlap and revolve around the Board’s finding of fact.

Ground (1) – Error in law: improperly requiring corroborating evidence:

12.Under this ground, the Applicant complained that the Board erred in law in requiring corroborating evidence to establish his claim.  This Court accepts that most genuine claimants fled their home countries under desperate circumstances which usually would not allow them the opportunity to obtain or bring with them corroborating documents or evidence.  The Handbook on Procedures and Criteria for Determining Refugee Status published by the UNHCR states:

“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. …

197.     The requirement of evidence should not thus be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. …”

There is a lot of realism in that statement.  In fact, time and again, the courts in Hong Kong or in the United Kingdom held that corroboration in asylum cases is not required: see SS (Iran) v Secretary of State for Home Department[6] and K v Torture Claims Appeal Board[7] and Mahmud v Canada (Minister of Citizenship and Immigration)[8].

13.However, a claimant is not entitled to require the decision maker to accept his claim without question.  In Hidayah[9], Chu, JA, as she then was, said:

“Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyze and assess his claim against all applicable grounds on the basis that his case is plausible.”

The decision maker is entitled to test a claimant’s claim against common sense and independent and credible COI for consistency, plausibility and inherent probability of his claim.  If the decision maker has no adverse finding of credibility, he would have to proceed to analyze and assess the claimant’s claim against all applicable grounds on the basis that his case is plausible.  If upon such consideration, the decision maker finds the claimant’s evidence incredible or his case implausible, he is entitled to make adverse finding of credibility against him and not to accept his evidence.  The issue is all about finding of fact and credibility of witnesses which is solely a matter for the Board.  To reject a claim or evidence for lack of corroborating evidence, without more, is an error of law.

14.The Applicant identified four offending paragraphs in the Decision.  In paragraph 165, the Board said “there was no evidence adduced to corroborate any of [his assertions of] his close and considerable involvement with leading members of the BNP.”  The only leading members referred to under that section on credibility, including paragraphs 165 and 167, were Tarique, the Applicant’s grandfather, and the unidentified senior leaders who sent the Applicant to India in 2004 to 2006 to negotiate with dissident leaders in exile and to Singapore in 2005 to check that millions of dollars in the accounts at the May Bank controlled by the BNP.  The Applicant relied on his delivery of the confidential files as evidence of the trust Tarique confided in him and the closeness of his relationship with Tarique.  The Board had considered that evidence in paragraph 9 above.   The evidence that Tarique instructed him in July 2007 to deliver the confidential files is implausible because the Applicant now accepted that Tarique had been put in custody since May to September 2007.  But he did nothing fill in the gap created by his acceptance of Tarique’s imprisonment since March 2007.  Given the amount of details he gave relating to those two deliveries, the gap and ambiguities created by his change of stance, it was open to the Board to give his evidence no credence. 

15.As for his reliance on his grandfather’s position as one of the five standing committee members of former President Rahman’s regime, that evidence collapsed entirely with his identifying the photograph of Dr Goni as that of Brigadier Hannan Shah and his assertion that his grandfather had died at the end of 30 December 2000.  Dr Goni is a renowned scientist and a prominent BNP member.  There is a plethora of COI concerning him and that he died in January 2016 at the age of 89, fifteen years after the Applicant pronounced his death during one of his screening interviews.  The Applicant could not have been Dr Goni’s grandson.  Given the state of the evidence, it was open to the Board to doubt his credibility and reject his evidence.  These are finding of facts solely for the Board, which the Court may not intervene. 

16.As for the Applicant’s complaint on paragraph 177 of the Decision, the Board did not actually reject his evidence that the senior BNP leaders had imposed trust and confidence in him for want of corroboration.  What the Board did was to point out the irrefutable fact that the Applicant had produced “no independent evidence or COI material to support his alleged relationship with and involvement with senior BNP leaders.  The Applicant did not even identify those senior BNP leaders.  What the Board did was to mention the weakness of the Applicant’s assertion.  All these are maters relevant as to the weight of his assertion.

17.The Applicant’s complaint on paragraph 184 of the Decision is more concerned with the Board’s treatment of corroborating medical evidence.  For reasons as explained in the Court’s analysis of the second ground of application, there is no substance in this complaint.

18.In summary, the Board never ruled out the Applicant’s evidence simply for want of corroborating evidence.  It gave detailed and valid reasons for finding his evidence incredible.  In the circumstances, the Board’s mention of lack of corroboration was to emphasised the absence of other evidence supportive of the Applicant’s case for the Board to consider and not the reason for rejecting his evidence.

Ground (2) – Failure to properly consider and/or accord appropriate weight to medical evidence

19.On the Applicant’s case, he had been subjected to severe beatings and electric shock when he was tortured in Gailbandha police station and a gunshot wound during his subsequent escape. He submitted that “Dr Chiao Wing-fu found that almost all of the scarring was consistent with the Applicant’s allegations…”  The Board had before it medical reports from a medical report from Dr Chiao, senior forensic pathologist, a medical report from Dr Siu, psychiatrist, and a mental status report from a doctoral trainee in clinical psychology.  The Board had considered all those reports in its analysis of the Applicant’s evidence and finding of fact.  In paragraph 184 of its Decision, the Board accepted that the Applicant had suffered injuries but found “there was no evidence produced to corroborate any of [his] assertions as to how he came by these injuries, his alleged detention and subsequent medical treatment.” 

20.The Applicant took issue with the Board’s reservation. He submitted that these reports did provide the necessary corroborating evidence of his past ill-treatment and any requirement that he ought to have even more evidence from Bangladesh, despite the lapse of over ten years from when most of the injuries were incurred, is improperly raising the evidentiary threshold and is effectively requiring the Applicant to produce corroborating evidence, which is also an error in law.  He said the senior forensic pathologist’s report should be considered along with the psychiatrist’s and psychologist’s reports.  He also referred to a very enlightening statement from the Upper Tribunal (Immigration and Asylum Chamber) in RR (Challenging evidence) Sri Lanka[10] in which the Upper Tribunal held:

“147. Whilst the fact that the appellant is scarred does not need expert evidence, the causes of such scars is a matter of expert opinion and it is clear that Dr Taghipour is of the view that the appellant could have sustained the scars in the way that he has described.

…

154. Once it is apparent that the appellant is scarred we have to ask ourselves how he came to be scarred. He says that he was tortured. The other possibilities are that the scars were the result of some innocent but unimaginable mechanism, or that they are the result of torture in very different circumstances to those advanced by the appellant. One might speculate that they were self-inflicted, presumably to promote the appellant’s case. None of these explanations is beyond belief but they do not appear to us to be likely.

155. Ms Kiss was not able in her cross-examination to lay a foundation to support any suggestion that the scars were self-inflicted or otherwise the result of bad faith on the part of the appellant. …

156.     In the absence of any evidence tending to suggest a different mechanism we do not see how we can fairly reject the appellant’s evidence about their cause when no alternative mechanism was put to him and he was not cross-examined on the basis that he was making up his entire case.”

21.The Court agrees with the reasoning in these dicta.  But these dicta should not be taken that far as to mean the Board is bound to accept the claimant’s assertion as to how the injuries were caused, if according to the expert’s evidence, the injuries are consistent with the claimant’s assertion as to how they were caused and the decision maker is unable to put forward an alternative mechanism as to the cause of the injuries.  The expert has no personal knowledge as to how the injuries were inflicted.  He only has sight of the injuries and what the claimant told him.  The claimant’s account as to how the injuries were caused is of paramount importance.  Whether to accept the claimant’s account is all a matter of credibility and depends the nature of the injuries. It is a finding of fact which has to be determined on the totality of the evidence.  The burden of proof is on the claimant, albeit on a very low standard.  But a claimant is not entitled to require the decision maker to accept his claim without question.  The decision maker could not have any evidence as to how the claimant incurred the injuries.   What it could do is to test the claimant’s evidence or assertion against other relevant objective facts or evidence, common sense, inherent probability and the medical experts’ opinions, bearing in mind the low standard of proof.  The decision maker could not in all cases put forward a positive case to the claimant as to how his injuries were incurred.  He simply does not know and has no means to find out.  He could only show that the claimant’s evidence is not to be believed in the light of other objective facts.  If a claimant puts forward a positive case that he was tortured by his uncle for dispute over the claimant’s land, and if the uncle did not actually exist or had died at the time when the injuries were allegedly inflicted and the claimant was not the owner of the land in issue or that the land did not exist, then what can the decision maker make of the expert’s evidence that the injuries allegedly suffered by the claimant is consistent with his allegation as to who inflicted the injuries and how they were incurred?  To accept the claimant’s assertion based on his fiction is clearly irrational and an error in law.

22.On the Applicant’s case, the injuries were inflicted by an officer stamping on his hand, suffocating him with water, applying electric shock to him and the gun shot at his stomach.  It never was the Board’s suggestion that the injuries did not exist or were self-inflicted.  The Board’s position was that it did not know how the injuries were incurred but was not satisfied on the totality of the evidence that they were caused under the circumstances as asserted by the Applicant because it found the Applicant not credible.  On the Applicant’s case, his position as Dr Goni’s grandson is one of the important basis on which the BNP and Tarique imposed confidence in him and entrusted him to take charge of the two deliveries of confidential files, which was also the reason for which he was tortured.  This is the centrepiece of his claim.  However, the Board found him manifestly lying about his relationship with Dr Goni.  His story about his position in the BNP collapsed.  The Board had doubts that he had been assigned by Tarique in July 2007 to make the confidential deliveries which was the background leading to his arrest, interrogation and torture.  Tarique was shown to have been held in custody between March and September 2007.  That fact was subsequently admitted by the Applicant.  Thus, Tarique could not have given him the assignment.  The Applicant explained that his memory failed him, but he advanced no alternative story to fill in the gap in his case as to how Tarique was involved in giving him that assignment.  His story about the interrogation and torture had no base to stand on. 

23.The Board had serious credibility concerns about the centrepiece of Applicant’s claim.  In view of such adverse finding of credibility, it was well entitled not to assess his claim on the basis that his case is plausible.  This adverse finding suggests the existence of a different mechanism which caused the injuries which were undisputed.  The Board was not in breach of the standard as stated by the Upper Tribunal in RR (Challenging evidence) Sri Lanka[11].

24.The Applicant relied heavily on Dr Chiao’s medical report.  However, the doctor did not simply say almost all the injuries were consistent with the Applicant’s claim.  Not only did he said the consistency was not diagnostic of the Applicant’s claim, he expressed grave reservation about his opinion based on consistency.  Firstly, he opined that the scars were matured scars, being more than ten years old, they may not provide much information about the nature of the original damage and causation.  Secondly, considering the non-specific nature of the scar with regard to causation and time of infliction, he said there are many alternative explanations and his opinion should not be taken as conclusive.  In conclusion, Dr Chiao said “given the time lapse between the alleged assault and the medical examination plus the fact that the scars found on the subject are inconclusive of the alleged assault, it is beyond medical evaluation alone to elucidate the validity of his torture claim one way or the other.”  Even Dr Chiao did not consider his report deserved much weight.

25.On any objective view, on the state of the evidence, it was open to the Board to give little or no weight to the medical reports and to make the finding based on the totality of the evidence as it did.  There is no substance in this ground.

Ground (3) – Unreasonable credibility finding

26.Under this ground, the Applicant submitted that the Board is bound to take into account any psychological assessments which may have bearing upon the case.  He complained that though the Board referred to most of the various medical reports, it failed to properly consider whether the medical reports explain the discrepancies in the evidence and/or the behavior of the Applicant nor does the Board explain in its Decision whether it accepted the various medical assessments or not.  This ground is principally directed at the Applicant’s change in evidence in accepting that Tarique was held in custody from March to September 2007 and could not have assigned the Applicant to deliver the confidential files in July 2007.

27.The Board dealt with these issues in paragraphs 156, 185 to 189 of its Decision.  Reading these paragraphs, it is clear that the Board had fully taken note of all the medical reports.  In paragraph 156 of its Decision, it noted Dr Siu’s opinion that the Applicant had depressive and anxiety symptoms but their nature and extent did not warrant a definitive psychiatric diagnosis of depression and anxiety disorder.  That report was of little assistance to the Applicant as the doctor found his condition did not warrant a definitive psychiatric diagnosis. 

28.In paragraph 186, it noted Dr Lam’s observations that in relation to giving oral testimony questions asked of the Applicant should be short and simple and may have to be asked repeatedly for clarification and that allowances would have to be given for minor inconsistencies and gaps in his memory.  In paragraphs 187 and 188, the Board summarised the Applicant’s performance in the eight screening interviews. It is significant that the interviews were held before Dr Lam’s report.  The Board’s observation of the Applicant’s performance contradicted Dr Lam’s opinion.  It found the Applicant was rarely short of an answer and gave a number of lengthy and detailed responses to many of the questions.  The Applicant gave a very detailed account and made serious allegations about how he was treated by the Bangladeshi authorities.  His performance was inconsistent with Dr Lam’s finding about his symptoms and the special care needed when taking evidence from him.  In making such finding, it goes without saying that the Board did not agree with the opinion expressed in the report.  It also gave reasons for its finding, ie the Applicant’s conduct was inconsistent with the basis on which the opinion was given.  The Board felt sure that he was lying about these matters.  This a finding of fact.  The Board had borne in mind all the medical opinion when assessing the credibility of the Applicant and the weight to be given to his evidence.  On any objective view, it was open to the Board to make the finding as it did.  There is also no substance in this ground of application.

Overall scrutiny

29.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board analysed the evidence carefully and tested it against common sense, inherent probability and the COI.  It found the Applicant was not a reliable witness and rejected his evidence.  It found he had failed to establish the factual basis to support his claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

30.For the above reasons, the Applicant’s leave application is refused.

Dated the 14^th day of April 2026

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1